Indefinite detention does not breach ECHR says European Court of Human Rights

Unlike most other European countries, there is no time limit on immigration detention in the UK. In addition, the law does not provide for an automatic judicial review of the lawfulness of detention. Instead, detainees must proactively challenge the lawfulness of their detention. In an admissibility decision of 18 May 2017, the European Court of Human Rights found that this system does not violate the European Convention of Human Rights, an in particular article 5 on the right to liberty.

Factual background

Arben Draga is a Kosovan national residing in the UK. He was granted refugee status and indefinite leave to remain in December 2001.

On 2 August 2006, following a conviction for criminal damage; possession of a class A drug with intent to supply; and possession of a knife in a public place, the Home Office served a decision to make a deportation order to Mr Draga, and detained him. Mr Draga was detained between 2 August 2006 and 29 March 2007, and again between 30 November 2007 and 30 September 2010.

Mr Draga complained to the European Court of Human Rights that his two periods of detention were in violation of article 5 § 1 (f) of the European Convention of Human Rights. Article 5 § 1 (f) states:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Mr Draga submitted that British law governing detention

was not sufficiently precise, accessible and foreseeable in its consequences to meet the standard of lawfulness and, as such, it lacked the quality of law necessary to deprive him of his liberty [25].

Mr Draga submitted three other complaints but these are out of the scope of this post, although it is worth noting that one of the complaint was dismissed because he did not pursue these arguments with the Court of Appeal. The ECtHR therefore ruled that

the applicant did not allow the national authorities to address the allegation of a violation of a Convention right or afford redress before those allegations were submitted to the Court [36].

Indefinite detention: a violation of the ECHR?

The argument regarding the unlawfulness of British detention policy was supported by Bail for Immigration Detainees (BID). They submitted in particular that

without hard-edged legal rules concerning maximum time‑limits, or automatic judicial supervision to guard against excessively protracted or otherwise disproportionate detention, domestic law was insufficiently clear, precise and foreseeable in its application to have the “quality of law” required by Article 5 of the Convention [31].

This argument was dismissed by the Court on the basis that

despite the absence of fixed time-limits and/or automatic judicial review, the system of immigration detention was sufficiently accessible, precise and foreseeable in its application because it permitted the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. In considering any such challenge, the domestic courts were required to consider the reasonableness of each individual period of detention based entirely on the particular circumstances of that case, applying a test similar to – indeed, modelled on – that required by Article 5 § 1 (f) in the context of “arbitrariness” (the Hardial Singh test) [37]

The Hardial Singh test was in turn summarised as follows

These principles require that detention be for the purpose of exercising the power to deport; the period of detention must be reasonable in all the circumstances; a detainee must be released if it becomes apparent that deportation cannot be effected within a reasonable period; and the authorities must act with due diligence and expedition to effect removal [22].

Once again, therefore, the Court sadly concluded that detention with no time limit does not violate the ECHR.

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Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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